Executive Summary: On May 30, 2012, the National Labor Relations Board's (NLRB) Acting General Counsel Lafe Solomon issued Memorandum OM 12-59, an updated report that analyzes seven recent social media cases in order to provide guidance on interpreting policies to ensure compliance with the requirements of the National Labor Relations Act (NLRA). This is the third report issued by the AGC on social media cases within eight months, underscoring the focus the Board has placed on these policies and the importance of ensuring that employers' social media policies conform to the Act's requirements. Notably, these requirements also apply to non-unionized employers.
Applicable Law
An employer violates the Act if it maintains a rule that would reasonably tend to chill employees in the exercise of their rights under Section 7 of the NLRA, which include the right to organize, join, assist, and bargain with a union, or refrain from such activities. The Board uses a two-step inquiry to determine if a work rule would have such an effect.
First, a rule is unlawful if it explicitly restricts Section 7 rights. Second, if the rule does not explicitly restrict protected activities, it will only violate the Act if: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. The Board construes ambiguities against the drafter, so where a policy is ambiguous and could be read to constrain Section 7 rights, the Board would interpret the policy as unlawful.
The AGC's Guidance
In the report, the AGC provides a detailed analysis of policies regarding social media and electronic technologies, confidentiality, privacy, protection of employer information, intellectual property, and contact with the media and government agencies. The report focuses on seven recent cases, six of which include at least some problematic provisions and one of which the Board found to be lawful under the Act.
The AGC emphasizes the importance of avoiding ambiguities. For example, the Board takes the position that employees may reasonably believe that their salaries and other working conditions are considered "confidential." Employees' salaries are quintessential "terms and conditions of employment" under Section 7. Therefore, a policy that prohibits employees from discussing "confidential information" violates the Act unless the policy clarifies that "confidential information" does not include terms and conditions of employment. The same lesson of avoiding ambiguities applies equally to other policies, such as privacy restrictions and contacts with the media and government agencies. To avoid ambiguities, the AGC recommends that employers provide details and examples of the types of conduct prohibited by the policy.
Lawful Examples
The AGC provided the following examples of policies that comply with the Act's requirements:
- Inappropriate Postings – A policy stating only that "inappropriate postings" about work or co-workers are prohibited likely violates the Act, but the policy is lawful if the employer includes examples, such as prohibiting "discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct."
- Be Respectful – A policy requiring employees to "be respectful" towards co-workers is problematic because it could curb discussions about terms and conditions of employment; however, the policy is lawful if it prohibits plainly egregious conduct such as "malicious, obscene, threatening, or intimidating" language.
- Bullying – A bullying policy is lawful if it prohibits "offensive posts meant to intentionally harm someone's reputation" or "posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy."
- Confidentiality – A confidentiality policy is lawful if it provides examples of the information that the company seeks to protect, such as "information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications."
Employers' Bottom Line:
The AGC's third report provides additional guidance on crafting lawful policies that comply with the Act's requirements, many of which are not intuitive. The Board is aggressively analyzing employers' handbooks and policies, thus employers should review their handbooks and policies to ensure compliance with the NLRA. A copy of the report is available here and on the NRLB's web site at: http://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies.
If you have any questions regarding the AGC's report or other labor or employment related questions, please contact the Ford & Harrison attorney with whom you usually work or the author of this Alert, Henry Warnock, an attorney in our Atlanta office, at hwarnock@fordharrison.com.